Academic journal article Chicago Journal of International Law

"So Made That I Cannot Believe": The ICCPR and the Protection of Non-Religious Expression in Predominately Religious Countries

Academic journal article Chicago Journal of International Law

"So Made That I Cannot Believe": The ICCPR and the Protection of Non-Religious Expression in Predominately Religious Countries

Article excerpt

I. Introduction

Even in countries steeped in religion, there are still those who, as Pascal once wrote, are "so made that [they] cannot believe."1 And, like Pascal, many of their neighbors and governing officials would rather they "behave[] just as if they did believe" so that they eventually succumb to belief or are made "more docile."2 When, inevitably, some do neither, a non-religious person in a predominately religious country may face stigma, ostracism, vigilante violence, or stiff pecuniary and prison penalties.3

Mohamed Cheikh Ould Mkheitir, a 28-year-old Mauritanian blogger, for example, was sentenced to death for apostasy after publishing an article deemed religiously offensive.4 Protestors, religious authorities, and scholars called for his execution; one religious scholar even offered a bounty for anyone who killed him.5 After the sentencing, the president said, "[W]e will apply God's law on whoever insults the prophet, and whoever publishes such an insult,"6 and a leader of a prominent political party said that Mkheitir got "the fate he deserves."7

This is despite the fact that international law, including the International Covenant on Civil and Political Rights ("ICCPR"), protects minorities' rights of conscience and expression.8 The Human Rights Committee ("HRC")-which has the authority to adjudicate individual complaints based on the ICCPR for individuals from countries who are also parties to the First Optional Protocol9- however, has yet to fully develop a jurisprudence that would best protect the expression of non-religious minorities in predominately religious countries. Especially in the context of violent reactions to non-religious expression and those events' relation to the ICCPR's prohibition of incitement, the HRC needs to clarify its jurisprudence and reaffirm its commitment to protecting controversial minority expression. This Comment outlines how it can do that while staying faithful to the ICCPR's text and HRC precedent.

Section II of this Comment briefly summarizes the paradigmatic cases of limitations on expression in countries that are party to the ICCPR or the First Optional Protocol. Section III analyzes the HRC's relevant decisions under the First Optional Protocol, the ICCPR's text, and, when helpful in resolving ambiguities, the ICCPR's drafting history. Section IV synthesizes that analysis and provides a framework for the HRC to further develop its jurisprudence on the right of non-religious minorities to manifest their beliefs and to express themselves.

II.Limitations on Non-Religious Expression in States Party to the ICCPR

In many States Party to the ICCPR, non-religious minorities face severe limits on their ability to manifest their beliefs and to freely express controversial non-religious ideas. In Egypt, for example, government officials have publicly called the presence of a mere 866 atheists in a country of over 80 million people a "dangerous development," and, over the past two years, the Egyptian government has conducted a national campaign to combat its proliferation that includes convicting atheists of blasphemy.10 For example, Mustafa Abdel-Nabi was sentenced to three years in prison for Facebook posts about atheism in 2016,11 Sherif Gaber was sentenced to one year in prison for discussing his atheist views on Facebook in 2015,12 and Karim Al-Banna was sentenced to three years in prison for "belittle[ing] the divine" on Facebook in 2015.13 Gaber was arrested in a "dramatic raid, with armoured cars surrounding his house in the middle of the night."14 This government oppression, moreover, is often coupled with parallel familial and societal pressures. Al-Banna, for example, who had earlier been listed as a "known atheist" by a local newspaper, endured his own father testifying against him at trial because he owned provocative books and "was embracing extremist ideas against Islam."15 In 2014, Ahmad Harqan, an atheist activist, and his pregnant wife were attacked in their home, only to be assaulted again at the police station and then imprisoned in connection to a complaint stemming from his criticisms of Mohamed on television. …

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